Wednesday, June 30, 2010

Waiting for Judge Busch's decision

Except for District 5 Diary, the Guardian's Steve Jones is one of the few city writers who has even tried to come to grips with the realities of the litigation on the city's Bicycle Plan. He often fails to shed any light on the subject, mostly because he's such a bike zealot himself his version of events is inevitably skewed. Jones was actually at the last hearing on the Bicycle Plan on June 22, which helps give his latest account a little more credibility:

Anti-bike activist Rob Anderson and attorney Mary Miles have been on a long and lonely — but so far, quite successful — legal crusade to kill any proposed bike projects that remove parking spaces or cause traffic delays. They have argued that the city shouldn't be allowed to hurt the majority of road users to help the minority who ride bikes, urging the city and court to remove those projects from the Bike Plan. But [Judge]Busch repeatedly said the court can't do that. "That's the policy question that's not for the court to decide," he told Miles in court, later adding: "I don't get to decide that the Board of Supervisors' policy is misguided."

I have argued for years on this blog that taking away traffic lanes and street parking on busy city streets to make bike lanes is a dumb idea, but that has never been part of our legal argument. And Miles only suggested that the city remove parts of the Plan that the city admits are going to have "significant impacts" on traffic and Muni lines after Judge Busch asked her why we haven't suggested any alternatives to what the city wants to do with the Bicycle Plan. She responded that, in the first place, nothing in the law puts that burden on anyone but proponents of a project. In the second place, the law already allows proponents of a project to simply not implement parts of a project that are going to have significant impacts that can't be avoided or mitigated.

But Jones is right that Judge Busch made it clear that he doesn't have the authority to pass judgment on the wisdom of the Bicycle Plan itself. That pronouncement by the judge of course pleases Jones, but that's always been clear, just as it was always clear to us---but evidently not to the many bike people who comment to this blog---that the first phase of the litigation was not about the merits of the Bicycle Plan---or Bikes versus Cars---but about whether the city should have done some kind of environmental review before implementing the Plan on city streets. This phase of the litigation is about the adequacy of the EIR that Judge Busch ordered the city to do after it lost the first phase of the litigation, since simply producing doorstop-like documents doesn't comply with the law. The EIR must contain enough information and analyses to allow the decisionmakers and the public to weigh the alleged benefits of the project against its admitted "significant" impacts on the environment.

Jones is naturally pleased that the city's argument is exactly what he and the city's bike people have argued all along, that it's okay if the city screws up traffic for more than 90% of the people who use city streets on behalf of a minority of cyclists. (The city only made this argument explicit in its brief for the June 22 hearing, which I wrote about here.)

But Jones repeats the falsehood long favored by cyclists that Judge Busch might rule against the city if he simply "finds some minor errors in the methodology" of the EIR. He quotes Marc Salomon to the same effect: "Once you get that complexity, the toeholds are everywhere to fight it." In fact once a city or a developer produces an EIR, the courts tend to give them the benefit of the doubt, just as they do on the underlying policy assumptions. But both these statements falsely suggest that the litigation is essentially about legal technicalities, not the essence of CEQA itself, which requires environmental review of any project that even might have an impact on the environment. CEQA case law over the years is full of decisions where judges have found EIRs defective for a number of non-trivial reasons. It shouldn't be surprising that developers and jurisdictions often simply hire consultants to do a pro forma exercise that produces an impressive looking document that doesn't contain the information that's necessary to evaluate a project.

Jones again:

Yet city officials have offered detailed arguments that the policy of facilitating safe bicycling isn't misguided, but instead is consistent with the transit-first policy in the city charter and with the goals of reducing greenhouse gas emissions, improving public health, and even alleviating overall traffic congestion by giving more people good alternatives to driving a car.

Yes, the city has made these arguments, but we claim that they have failed to provide evidence to support them.

For example, take the bogus transit-first argument: the bike people's friends in City Hall have quietly amended the city's "transit first" definition in the City Charter to include encouraging cycling. I bet you naively thought that "transit" referred to buses, trains, and streetcars. Not in San Francisco! Which is why the city can make the technically correct but dishonest argument that, even though the Bicycle Plan will cause significant delays to a number of Muni lines---that is, degrade the operation of our actual "transit" system---it is consistent with transit first as defined in the City Charter (Section VIIIA.115, Transit First).

Added later: Actually, that's not a good example, since it only shows that the city is willing to use a crude semantic deception to push the bike people's agenda. Judge Busch would probably say that the city has the right to put this kind of crap into its charter.